DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _30_ OF ___2016_
DATE OF FILING : 4.4.2016 DATE OF PASSING JUDGEMENT: 24.08.2017
Present : President : Udayan Mukhopadhyay
Member(s) : Jhunu Prasad & Subrata Sarker
COMPLAINANT : 1. Sri Ajit Kumar Saha, son of late Chittaranjan Saha of Flat no.B-1, Second Floor at premises no.10, Vivekananda Sarani,Elachi, P.O Narnedrapur, Kolkata – 103.
2. Smt. Rama Saha, wife of Sri Ajit Kumar Saha, son of late Chittaranjan Saha of Flat no.B-1, Second Floor at premises no.10, Vivekananda Sarani,Elachi, P.O Narnedrapur, Kolkata – 103.
-VERSUS -
O.P/O.Ps : 1. M/s Ideal Construction at premises no.1/98, Naktala Govt. Scheme-1, Naktala, P.S Jadavpur, Kolkata – 47.
2. Sri Suman Kumar Dey, son of Sri Bhola Nath Dey of 251/A/6A, N.S C Bose Road, P.S Jadavpur, Kolkata- 47.
3. Sri Suvendu Chaudhuri, son of Sri S.K. Chaudhuri of P-476, Purba Para Laskarpur, Kusum Kunja Apartment, P.S Sonarpur, Kolkata – 153.
4. Sri Atanu Chakraborty, son of late Tarakanta Chakraborty of 10/60A, Bijoygarh, P.S Jadavpur, Kol-32.
5. Sri Bablu Naskar, son of late Tulshi Charan Naskar of 10, Vivekananda Sarani,Elachi, P.O Narnedrapur, Kolkata – 103
6. Sri Tapan Naskar, son of late Tulshi Charan Naskar of 10, Vivekananda Sarani,Elachi, P.O Narnedrapur, Kolkata – 103
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J U D G E M E N T
Jhunu Prasad, Lady Member
Interference of this Forum has been sought for by the complainants contending gross negligence, deficiency in service and unfair trade practice in rendering necessary service towards the Complainant by the Opposite Parties
In epitome, the case of the complainant, is that, the complainants purchased one flat being No. B – 1 on the 2nd floor, south facing measuring about 950 sq. ft. super built area on G+III storied building with undivided proportionate share or interest in the land and the common areas and facilities, there of, at premises being No. 10, Vivekananda, Elachi, P.O. – Narendra Pur, Kolkata -103. District – South 24-Parganas for a total consideration value of Rs.19,00,000/- from the O.P. No 1,2 and 3 and the above mentioned flat was registered on 28.04.2014 as well as the O.Ps delivered the physical possession of the said flat to the complainant.
After getting possession of the above mentioned flat, the complainants used to stay and reside there and consequently found some discrepancies and/or incomplete work of the said flat and incomplete necessary amenities in the premises.
Thereafter the complainants informed the all O.Ps with a request to solve such issue and all the O.Ps on different pretext severally excuses and assured to complete the same at an early date, but till date they did nothing.
Moreover, the O.P No. 5,6, and 7 under the indulgence of the NO. 1,2,3 and 4 have occupied the space of main gate through their temporary shop, for that they obstructed egress and ingress of the main gate as well as car and or other vehicle also obstructed to enter the premises.
In this circumstances the complainants sent a legal notice to all of the O.Ps, but they did not respond, which shows and establish their deficiency in services in providing and entering into the agreement/ Deed of conveyance at some specific terms and conditions as enumerated in the deed of conveyance dated 28.04.2014.
Having no other alternative, the complainant filed this instant case before the Forum for getting relief, as prayed for.
Issued notice upon the O.Ps.
In spite of receiving notices, the O.Ps did not appear to refute and to controvert the case by filing written version. So the case is heard ex - parte against the O.Ps.
Points for Determination :-
1. Was there any negligence or deficiency in service on the part of the Opposite Parties?
2.Are the complainants entitled to get relief as prayed for?
Decision with Reasons:-
On perusal of the record, we find that the complainants filed affidavit – in - chief, BNA and some Xerox copies of document to support of his contention.
All points are taken up together for consideration for the sake of argument and brevity.
The main dispute to be decided by the Forum, is that, whether the O.Ps are liable to finish the entire unfinished work as alleged by the complainant.
On overall evaluation of the argument made by the Ld. Advocate of the complainants and on critical appreciation of the material unchallenged evidence on record, it reveals that admittedly the complainant purchased one flat as mentioned in the complaint as well as mentioned in the under schedule of complaint and paid total consideration money of Rs. 19.00.000/- to the O.P No.1,2,3 and 4.
Now fact remains that after getting the possession of the said flat the complainants found some discrepancies and/or defective and unfinished work of the said flat in question as stated in paragraph No.10 and 11 of the complaint.
Fact also remains that the complainants immediately informed the matter to all of the O.Ps but the O.Ps deliberately ignored to complete the same.
Manifestly, it is found from the record and documents that at the time of filing of the complaint case before this Forum, the complainants filed a petition with a prayer for an appointment of an Advocate commissioner to inspect the said unfinished and or incomplete work of the said flat in question and the said prayer was allowed by order dt. 11.4.2016 and the Forum appointed an Engineer Commissioner to inspect the said disputed matter namely Swapan Sarkar.
After due inspection by the Ld. Engineer Commissioner namely Swapan Sarkar report has been filed dated 05.05.2016 regarding the said unfinished and or incomplete work of the said flat in question.
The said Engineer Commissioner examined all twelve unfinished items as described in his report ; 1.Wooden Frame of door, 2.a)Main entrance door of flat b) other doors inside the room, 3.Window grill & sliding window, 4. A) Floor level at front verandah b) Hair crack in ver, 5. Toilet fittings, 6. Entry of rain water through windows during monsoon, 7. Approach of car entry from road, 8. Boundary wall, 9. Soak pit, 10. Electrical wire in meter room, 11. Under Ground Water Reservoir, 12. Lift etc. The said Engineer Commissioner also made a tentative cost of estimation for rectification of 9 numbers of unfinished items except S.Nos. 7. Approach of car entry, 11. Under ground reservoir, 12. Lift, amounting to Rs.79,920/-.
Considering the report of engineer commissioner as an expert opinion we are inclined to accept the same and we have no hesitation to found gross deficiency of service on the part of the OPs. within the per view of section 2(I)(g) of C.P. Act 1986 and the OPs are liable to complete the unfinished work as per engineer commissioner’s report dated 05.05.2016, in default to pay of Rs.79,920/- to the complainants as per estimate of engineer commissioner, so that the complainant can take initiative to complete the unfinished work at the said cost at his own and the O.Ps are also to pay compensation of Rs. 30,000/- to the complainants.
Moreover, all the allegations made by the Complainants are unchallenged, though the Opposite Parties got chance to contest and to refute by filing the Written Version before the Forum, but the Opposite Parties deliberately failed to do the same. Thus, there are no reasons to disbelieve the unchallenged testimony of the Complainant.
Therefore, in light of the above analysis, we are inclined to hold that the Complainants has successfully proved his case and is entitled to get the relief as prayed for from the both Opposite Parties and consequently the points for determination are decided in affirmative.
In short, the Complainant deserves success.
In the result, we proceed to pass
O R D E R
That the case be and same is allowed ex – parte against the Opposite Parties with cost of Rs. 5,000/- only payable by the Opposite Parties to the Complainants, within one month from the date of this order.
That the O.Ps are jointly and severally directed to complete the unfinished work and/or incomplete works of the said flat in question of the complainants as assessed by the Ld. Engineer commissioner in his report dated 05.05.2016 within a period of 30 days from the date of this order.
Failing which, the O.Ps are also jointly and/or severally directed to pay of Rs. 79,920/-to the complainants as estimated cost by the Engineer Commissioner for repairing of the unfinished works and or incomplete works of the flat in question within a period of 30 days from the date of this order.
That the O.Ps are jointly and severally directed to pay of Rs. 30,000/- as compensation to the complainant for harassment and mental agony and to pay of Rs.5,000/- to the complainant as litigation cost as stated above within a period of 30 days from the date of this order.
In the event of non compliance of any portion of the executable order by any of the O.Ps within the above specified period, the O.Ps shall have to pay 10% interest against Rs.79,920+30,000/-+5,000/- =1,14,920/- to the complainants from the date of default till its realization.
Let plain copies of this order be supplied to the parties free of cost when applied for.
Member Member President
Dictated and corrected by me
Member
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
O R D E R
That the case be and same is allowed ex – parte against the Opposite Parties with cost of Rs. 5,000/- only payable by the Opposite Parties to the Complainant, within one month from the date of this order.
That the O.Ps are jointly and severally directed to complete the unfinished work and/or incomplete works of the said flat in question as assessed by the Ld. Engineer commissioner in his report dated 05.05.2016 within a period of 30 days from the date of this order.
Failing which, the O.Ps are also jointly and/or severally directed to pay of Rs. 79,920/- as estimated cost by the Engineer Commissioner for repairing of the unfinished works and or incomplete works of the flat in question within a period of 30 days from the date of this order.
That the O.Ps are jointly and severally directed to pay of Rs. 30,000/- as compensation to the complainant for harassment and mental agony and to pay of Rs.5,000/- to the complainant as litigation cost as stated above within a period of 30 days from the date of this order.
In the event of non compliance of any portion of the executable order by any of the O.Ps within the above specified period, the O.Ps shall have to pay 10% interest against Rs.79,920+30,000/-+5,000/- =1,14,920/-to the complainants from the date of default till its realization.
Let plain copies of this order be supplied to the parties free of cost when applied for.
Member Member President
